Question: More than two years after I filed for divorce from my second husband of 26 years, he died unexpectedly, just a week before our trial. The temporary alimony he was paying me stopped immediately. My husband’s will that left half of everything to his secretary-girlfriend and the other half to his three children by his prior marriage. Almost all property was in his name, and we do not live in a community property state. He appointed his secretary-girlfriend to handle his estate.

My lawyer says I should contest his will in the probate court and get a third of his estate. But, because I have no work skills, I don’t think a third is enough. I found out that he had tried to take my name off his retirement plans, but he was not allowed to do so during the divorce. His girlfriend has threatened to sue me over this. What is the best way to get my fair share? I am 64 years of age.

Answer: The unexpected death of a spouse during a divorce proceeding can lead to even more complications because the surviving spouse may have to make a choice between dealing with the family court and/or the probate court.

Generally speaking, the laws in a majority of states provide that while death of a spouse during a matrimonial proceeding terminates the surviving spouse's right to get ongoing alimony, the ability of the survivor to receive his or her fair share of marital property survives. Some states have allowed a lump sum alimony award.

Therefore, if you live in one of these states, the fact that the property was in your husband’s name is irrelevant because, at the instant you filed your lawsuit, your equitable interest in the property both of you acquired during the marriage became "vested" in "the marital estate". Once the marital property has been identified and valued, it is subject to being equitably divided by the family court based upon the rules of your state of residence, regardless of your spouse's death. The percentage you receive is up to the judge who can consider the fact that you will not be receiving alimony as a factor to increase your share.

On the other hand, all states protect surviving spouses from being "cut out" of estates which allows you to go into the surrogate or probate court and to "elect" to take against your husband's will. By making this election, you will be entitled to receive a spouse's share of his probate estate -- generally one-third.

But there are drawbacks: one-third of his probate estate may be less than a fair share of the marital assets. Or vice versa. And if you move ahead in one court, you will not be able to proceed in the other.

Based upon federal laws designed to protect spouses called "ERISA," your husband was not able to dislodge you as the beneficiary of his qualified retirement plans, and those should remain yours. But IRA’s are not subject to the same protections.

What to do? You, your matrimonial lawyer, and an experienced probate lawyer should sit down, list the assets and the character (marital and non-marital; probate and non-probate), and decide where you will have the best chance of getting the most.